United States v. Patricia Foreman

BROWNING, Before BOOCHEVER REINHARDT, Judges. Circuit

BOOCHEVER, Judge: Circuit challenges Patricia Foreman the dis imposition up

trict court's of a two-level adjustment ward of offense level for pursuant "abuse of of trust" § 3B1.3 of the Guidelines.1 We find that the the district court's decision. was warranted and affirm FACTS AND PROCEDURAL HISTORY July 20, 1988, On Foreman was a Well- ston, Missouri officer. On that date questioned by Angeles she was Department Los Police Drug officers and Enforce- Agency agents Angeles ment in the Los Airport International after the officers ob- they suspicious served what considered be- part. havior on her When identified identification, themselves and asked for her policebadge she showed them her and stat- ed that she was an active officer. question- The officers continued with their ing eventually posses- arrested her for sion of a controlled substance. constitutionality challenges constitutionality held the of the Guidelineson 1. Foremanalso grounds Brady, Guidelines,claimingthey pro- these F.2d 538 tional decisionin in UnitedStatesv. of the cess districtcourtsand violatedue (9th Cir.1990). by limiting sentencing Foreman'sconstitu- discretionof challenge,therefore, precludedby infringing rights our defendants' Brady. recently up- to individualizedsentences. We 5, 1988, August was indicted This give standard is intended to 14, 1988, pled guilty appeals November court of flexibility in reviewing possession application one count of with intent to dis- of a standard grams tribute 310 of cocaine violation of subjectivity. involves some The def- 841(a)(1)(1982). 21 U.S.C. In determin- erence due a distirct court’s § deter- ] [sic Guidelines, ing her sentence under the depend mination will upon the relation- upward district ship court included a two-level of the facts guidelines found to the trust, adjustment position for of a of abuse standard being applied. particular If the concluding that Foreman had “used her determination closely involved resembles position police as a officer to finding fact, a of appeals court of investigating dissuade the officers from apply would clearly erroneous test. As proceeding further with investiga- their approaches determination purely tion.” The court concluded that range legal determination, her however, the court 41 of sentence was 33 to months and appeals found of would review the determina- departure no range basis from that closely. tion more strong because of Foreman’s standing in Cong.Rec. 134 (daily 21, H11257 ed. Oct. community great her and the sense of 1988). This definition of “due deference” shame and embarrassment she felt from parallels the standard of review for mixed betrayal position her her of in the commu- questions of law and fact we announced in nity. In its calculation of the sentence 1195, United McConney, States v. 728 F.2d however, range, the court allowed a two- (9th (en Cir.) banc), denied, cert. adjustment “accept- level downward 824, 101, U.S. 105 S.Ct. 83 L.Ed.2d 46 responsibility.” 23, ance of January On (1984). United States v. Daughtrey, 874 1989, the court sentenced her to 33 months (4th Cir.1989) F.2d 217-18 (citing custody years followed three of su- McConney). pervised release. If application of the rule of law to the requires inquiry facts that is “essen-

DISCUSSION factual,” tially one that is founded “on application fact-finding tribu- up- Foreman was assessed a two-level experience nal’s mainsprings with the of position ward for abuse of a of conduct,” human ... the district court’s trust “in a manner facili- determination should be classified as one tated the commission or concealment of fact reviewable under the erro- Sentencing offense.” United States [her] If, hand, neous standard. on the other Commission, Guidelines Manual 3B1.3. question requires legal us to consider Specifically, the district court found she concepts in the mix of fact and law and position abused a showing trust judgment to exercise about the values police identification inves- legal principles, that animate ... tigating during ques- officers their initial question should be classified as one of tioning. challenges adjustment, She law and de reviewed novo. claiming that the use of her identifi- position cation did not (quoting abuse of trust F.2d McConney, 728 at 1202 Com Duberstein, 278, 289, “in a manner that facilitated” missioner v. 363 U.S. 1190, 1199, (1960)) her crime. 80 S.Ct. L.Ed.2d 1218 (citations omitted). establishing appellate The statute review sentencing decisions under the using statutory Guide due defer provides appeals standard, lines the court distinguish ence we our recent give “shall due to the district Restrepo, statement United States v. deference application guidelines (9th Cir.1989), court’s to the 884 F.2d 3742(e) (West Supp. facts.” 18 U.S.C.A. application of the is reviewed de Guidelines 1989) added); (emphasis accord In Restrepo novo. we reviewed the district Sanchez-Lopez, 879 F.2d 557 court’s construction of the them (9th Cir.1989). selves, clearly question of law. We deference, prac- trust, therefore accorded no corded to one with a nor equivalent review, do we believe that such a limitation can be tical of de novo to the interpretation. implied. specifically, police district court's We con- More officers Restrepo's public strue application unmodified assertion that are accorded to enforce the public, including of the Guidelines is reviewed de law. The fellow law en- applicable only legal agents, novo as determina- forcement tend to trust that provisions. tions of the Guideline's officers will not violate the laws charged enforcing. attempt- with legal Foreman raises both and fac advantage legal ed to take of that trust to con- tual issues. The issues are whether activity. impli ceal her criminal We believe that an abuse of a of trust must precisely type special privilege this is templated by of situation con- cate a accorded someone posi- § position upward 3B1.3 as an abuse of in that and whether an public adjustment proper tion of trust. § under 3B1.3 is for use position of a of trust in a manner that any Foreman also contends that ef significantly attempted facilitated the con part position forts on her to use her as a cealment of that offense. We review the police investigation officer to avoid legal interpretation district court's "sig unsuccessful and thus could not have Restrepo, Guidelines de novo. See nificantly facilitated" her crime. She F.2d at 1295. The factual issue is whether attempts position claims that mere to use a significantly

Foreman's conduct the concealment of her crime. We defer to facilitated significantly of trust do not come within the Guidelines and facilitate a crime the factual determinations made the dis justify upward adjust therefore do not application trict court in the course of its imposed ment rectly here. While Foreman cor the Guidelines unless erro language § v, Wills, asserts that the of 3B1.3 neous. See United States "attempts," does not include her focus on (9th Cir.1989). F.2d efforts, thereof, the success of her or lack Section 3B1.3 states: "If the defen misplaced. position public private dant abused a trust, or Initially special skill, we note that or used a in a manner require § significantly 8B1.3 does not the abuse of a that facilitated the commis position offense, of trust to result in the successful sion or concealment of the in commission or concealment of the offense. Manual, crease 2 levels." Guidelines Rather, requires only § argues ap 3B1.3 that § § 3B1.3. Foreman that position plies only abuse of of trust occur "in a man to abuses of trust that involve significantly special privilege ner that facilitated" use of a accorded someone (emphasis added). position crime "Facilitate" is de in that of trust. She claims that fined as "to make easier or less difficult." inapplicable § 3B1.3 is therefore to her be Webster's Third New International Dic any special privi cause she did not abuse lege tionary (1976). Thus, guideline's accorded her as a officer implies showing use of the word "facilitated" the drafters of this section intended it to that identification investigating to the officers. We find no apply position argument. adjustment abuse of a of trust merit in this The in position § which made it easier to com 3B1.3 is for "abuse of a crime, regardless guideline expressly mit or conceal a trust." The does not special privileges success of that abuse.2 limit such abuse to ac- ment," quiry Thus, ignore § but modifies"facilitated.' the in- 2. The dissentclaims that we 3B1.3's "significantly," useoftheterm whichthe dissent is not the extentto which the abuse of argues"plainlyrequires sentencingjudge concealment, trust furtheredthe crime or but abuse, assessthe effectof the and to determine whetherthe abusemadethe crime magnitude: whetherthe effectwas of sufficient easierto commitor conceal. it must have furthered the crime or conceal- Commentary to the is to the `significantly.'" ment (emphasis Dissent at 1341-1342 same effect. "The contributedin somesubstantial of trust must have original). "Significantly," in how- to facilitat- n way ever, modify doesnot "commissionor conceal- drawing implication, Before such an we with the policy Commission’s attempts, on recognize Sentencing that Commission probable if a or intended loss that the de- specifically provided has attempts attempting fendant was to inflict can See, e.g., determined, other sections of the Guidelines. figure would be if it used Guidelines Manual (providing 3C1.1 larger loss.”). than the Here, actual willfully im “[i]f completed all the acts she be- peded obstructed, or attempted or to im lieved necessary to conceal her offense. pede or obstruct jus administration of Consistent with the Guidelines’ tice”). general principles Under of statu therefore, attempts, to conceal tory construction, statutory some “[w]hen her offense should be treated the same as a provisions expressly require mention a successful concealment. posi- Abuse of a ment, the omission requirement of that tion of offense, not a substantive statutory provisions other implies but we believe the approach Guidelines’ both intended [the Commission] attempts general support lends to our and the exclu requirement inclusion of the interpretation of 3B1.3. requirement.” sion Coast West Lines, Truck Inc. v. Arcata Community argues dissent the Commis- Center, Inc., Recycling 1239, 1244 846 F.2d policy sion’s attempts on inapplicable is in denied, (9th Cir.), cert. 856, 488 U.S. these circumstances because it “addresses 147, (1988) (emphasis S.Ct. 102 L.Ed.2d 119 only the determination of base lev- offense original). in Section 3B1.3’s exclusion of els, says adjustments.” nothing about any provision attempts, therefore, Dissent at (emphasis in original). generally preclude would the implication of Thus, according dissent, to the we improp- such a provision guideline. in this In ascer erly apply principles governing the sort of taining intent, however, the Commission’s (established crime the defendant committed “we interpret strive to in one in Chapter Guidelines) Two of the to the section of a statute consistently with the harm means the caused language of other sections with the employed (established to commit the crime purposes of the entire statute considered as Three). Chapter in Howerton, Adams v. a whole.” 673 F.2d The dissent misconstrues our decision. denied, (9th Cir.), cert. 458 U.S. interpret We do not 3B1.3 to at- include § 102 S.Ct. 73 L.Ed.2d 1373 to tempts (1982). Rather, the crime. we Refusing attempts to allow for facilitate believe the intended to include 3B1.3 would be inconsistent Commission with § to conceal attempts overall facilitation of policy Commission’s Guidelines on attempts. provisions crime of this guide- within adjustment line. In applying an for abuse attempts The Guidelines treat that are trust, therefore, position inquiry of a of our specific not guideline covered offense analogous determining proper to of- completed the same as offenses when “the fense level: we must assess the defen- completed defendant all the acts the defen- culpability. adjust- dant’s criminal “This necessary dant believed com- successful applies persons ment to their who abuse pletion of the offense or the circumstances positions signifi- of trust to facilitate ... that the demonstrate defendant was about cantly the or of a commission concealment complete appre- to all such acts but for the persons generally Such crime. viewed interruption hension or some similar culpable.” as more Guidelines beyond event the defendant’s control.” 3B1.3 § Guidelines Manual 2Xl.l(b)(l); (Background) added). see id. (emphasis In § 7) (Application (“In dissent, keeping 2F1.1 Note of little words we find “there is § ing merely provided crime and not have an abuse to the of trust contributed ease of the opportunity easily that could as been af- crime's or have commission concealment. Neither persons.” guideline Commentary says any- to forded other 3B1.3 nor the added). (Application l)(emphasis thing Note In the about the extent to which the of abuse Commentary, efficacy as in the text of trust must contribute to the of itself, the focus is on the extent which the crime’s concealment. to commission or might be inferences other recognize that between culpability in criminal difference facts, findings these same who drawn A and one crime who one [conceals] erro- court necessary to the district the acts [con- all commits unexpectedly A but neous. a crime of cealment] 4. Without n. at Dissent foiled." policy the Commission’s deciding whether CONCLUSION adjust- other applies attempts trust under position of aof Abuse an applies policy ment, we believe special of a to abuse is not limited 3B1.3 signifi- trust which position of of a abuse with a to one privilege accorded a defendant’s cantly facilitated provid- Moreover, enhancement trust. charged. ishe crime with which conceal the abuse of to an applies in that section ed may therefore, hold, that § We facilitat- for abuse adjustment provide read con- attempted ed facilitat- trust that position of court, there- district offense. victed of- attempted concealment ed upward a two-level fore, assessed properly fense. sentence. in Foreman’s adjustment that, as argument final Foreman’s signifi- matter, AFFIRMED. her conduct did factual claims crime. She cantly facilitate response to showed she Judge, REINHARDT, Circuit using it no intention had questioning dissenting: The district investigation. deflect their two-level court’s affirming the district con- findings and following made sentence, of Foreman’s upward clusions: of section scope the enlarges majority the was defendant that when The facts language of anything beyond far 3B1.3 the Los police at by the approached first I have reasonably bear. can provision that badge her displayed Airport, she Angeles about my reservations expressed elsewhere the officers. to identification Sentencing which the restrictions of display of the the circumstances Given of the discretion place Guidelines badge, the police identification Brady, sentencing judge. then used defendant that the satisfied is Cir.1990)(Reinhardt, (9th 538, 544 F.2d attempt to police officer position as a her Nevertheless, concurring specially). J., officers investigating to dissuade Guidelines, we apply we must since their inves- further with proceeding they are written. them as apply should success- attempt not This tigation. in the strained acquiesce I cannot Because of However, an abuse it was ful. I majority, by the rendered interpretation to use of trust for position dissent. to police officer as a employment her of investigation

attempt to deflect applica- language begin I with responsi- attempt escape to her, and thus guideline: ble activity. her bility for criminal finding as a interpret We or Trust Position 3B1.3. Abuse § of of facili- significantly conduct Foreman’s that Special Skill Use of her offense. conceal attempt to her tated of position abused If defendant she fact that dispute the not does Foreman special trust, or used private public or investigating offi- her to showed significantly skill, that in a manner her. began questioning cers after or conceal- the commission sur- circumstances and the This action facilitated by 2 levels. increase offense, ment that strong inference to a rounding it lead of employed may not be This and that intentional conduct was Foreman’s 3B1.1, provided that addition to to her facilitated it of if an abuse employed may it be nor crime, her efforts though even her conceal of- in the base included is or skill we While ultimately unsuccessful. specific position, fense or offense character- level did satisfy not the rest of istic. section 3B1.3. Sentencing Commission,

United States permit Section 3B1.3 does not or direct Manual, (Nov. 1989) sentencing judge to enhance the sen- added). (emphasis majority The concedes everyone tence of position who abuses a complete by that Foreman’s offense was public Instead, provides trust. it for en- badge, the time she showed only hancement if the defendant’s abuse applicable only this section is if Foreman’s “significantly the ... conceal- facilitated identifying act of herself as a officer (emphasis added). ment of the offense” position public constituted an abuse of a majority facilitating notes that a crime trust, “significantly easier, which facilitated the or making concealment means it (em- necessarily successful; making ... offense.” Id. it added). phasis enough, goes. However, true as far as it majority proceeds then to commit sev- majority gives short shrift to Fore- First, eral virtually ig- serious errors. it argument man’s that her conduct was not “significantly,” nores the word which modi- of her “abuse” as an officer. face, fies “facilitated.” On its this term suggests ap- that section 3B1.3 requires plainly sentencing judge plies only “spe- when the offender abuses a abuse, assess the and to deter- effect privilege” enjoyed by cial virtue of mine whether effect was of sufficient public trust, agree and I can magnitude: it must have furthered the interpretation with the that this “significantly.” crime or concealment Fur- Still, unsatisfactory. it must be conceded thermore, tense, past i.e., the use of the applies that section 3B1.3 to offenders who “facilitated,” indisputable prop- renders trust; positions public merely abuse that the actually osition abuse must have occupy positions to those who such or even had some effect. The abuse must have positions. to those such To who use abuse (a matter of his- facilitated misuse; improperly, use to make “[t]o fact); say torical is not sufficient of, pervert, misemploy; use or bad merely in question that the act constitutes advantage take a English bad of.” Oxford that, conceivably gen- the sort of act or in Ed.1971). (Compact 11 Dictionary This eral, tendency has a to facili- require something seems to me to more tate. merely responding request than to a precisely way notes, do, identification in the in which majority “signifi- The as I that police expected respond. cantly” officers are to In modifies “facilitated” rather than case, something this the is intent: if upon more “commission or concealment.” Based accept finding observation, majority we the district court’s that this the asserts that badge Foreman flashed her in a conscious inquiry “the is not the extent to which the attempt suspicion to deflect and conceal abuse of trust the crime or con- furthered offense, cealment, her then we must conclude that but whether the abuse made the abuse, this was an rather than crime to easier commit or con- use, merely Ante, public of her of ceal.” at 1338 n. 2. I see no differ- However, trust.1 I need not the inquiries, resolve ence these between two unless question conduct, majority intent because Foreman’s the believes that “furthered” con- whether or not it was an “abuse” of her in way notes ultimate success that “facili- likely 1. The district court reached this de- conclusion location. It is also Foreman was trained spite representation Foreman's uncontradicted identify to herself as officer on all sentencing hearing at the that she showed her involving public govern- occasions contact with badge only top because it was on of her driver’s officials, any ment as well as on occasions precisely license in her she had where wallet— private might where contact with citizens lead keep eminently been trained to it. This was an controversy to or official action. We should not conduct, explanation reasonable strongly suspect for her and I lightly improper infer an motive when an offi- nearly that all officers merely cer of the law follows orders. keep badges are trained to their in a similar 1342 rule, majority the looks this event, Disregarding tak- any even not.2 In does

tated” the stat- of unambiguous language past the as preferred formulation majority’s the ing “impli- odd test, its rather justify in there order ute version authoritative the effort to facili- it an argument that that unsuccessful cation” conceivable simply is no “significantly having as is the same case Foreman’s tate here. In satisfied was within facilitated,” included or is somehow serve did not badge her showing of re- Here, majority the commit, it phrase. nor did latter the easier her crime make error, misconstru- this time peats her effort its first upon effect any practical have aid to construction pertinent fact, ing Foreman’s the most offense. the conceal Commentary official guideline: whatsoever. effect practical had no actions This adopted along Com- assertion, with it. majority’s that Contrary to read, devastating mentary, properly ac- that found even the district degree activity colleagues’ construction. my criminal any effect on tions had necessary ar- for enhancement no provides of facilitation majority involved,3 “abuse aspect virtually only view a different adopting gument for re- that portion of section appeal. trust” facts on Application any attention ceives argument no makes majority Since part of adopted as that were unsuccessful alleged and bare 508, 515, 39 1, 34, 15 S.Ct. zberger, 157 U.S. effica- conceal, any evaluation to without v. Caminetti J.); (Harlan, (1895) 601 L.Ed. to use one’s an intent to cy. Yet 470, 485, 37 States, S.Ct. 242 U.S. United in the is inherent facilitate (1917); Packard 442 192, 194, L.Ed. 61 “abuse”; majority’s the concept of very 492, NLRB, 330 U.S. 485, v.Co. Car Motor the no effect to gives approach (1947) further 793, L.Ed. 1040 789, 91 67 S.Ct. signifi- have that the abuse requirement Sullivan, J.); (Jackson, substantially con- cantly or 334, 331, 92 693, 689, 68 S.Ct. facilitated 332 U.S. phrase to the concealment. tributed J.); Unexcelled (Black, (1948) 297 L.Ed. substituted could be with” States, “in connection U.S. Corp. v. United Chemical facilitat- “in a that (1953) manner 583, 580, L.Ed. 64, 59, S.Ct. reads result, majority the the as ed” and J.)). (Douglas, movement).” English Dictio- unintended, certainly or action Such a connotation 2. Oxford Ed.1971). (Compact nary 1099 “fur- objective support as well. To lacks and forward, things, (usually help assist is "[t]o ther" (an 3. See note 6 promote, persons); favour frequently to less infra. statute, facilitation,” in every “attempted would identical ence to the and thus give effect to that case. intentional omission. However, majority rejects pre- the such a Having freed itself from constraints case, sumption adverting in this only guideline also of the to “the but it, policy Commission’s overall Guidelines Commentary explaining majority attempts.” Ante, By grand at 1339. this by turning a third time errs phrase apparently signified section 2X1.- applicable if provisions not here. Even one (“Offense appears Chapter which Two inappropriateness to overlook the wishes ”), (“Other Conduct”), XPart but excursion, why it is difficult to fathom this Offenses alleged generality of this section is majority authority it cites believes open 2X1.1, question. by to serious Section supports its selective construction of the terms, only its determi- own addresses concedes, majority As the the fact statute. levels, nation of base says attempts expressly by are covered oth- that offense adjustments, nothing about which are pre- er of the Guidelines raises a sections subject Moreover, Chapter Three.4 attempts sumption that are covered when Commentary to this “overall Guidelines explicitly mentioned and not cover- they are policy” specific no fewer than thirteen cites explicitly are not mentioned. ed when provisions preempt by specifically which it States, v. United See Russello 464 U.S. Id., Commentary providing attempts. 296, 300, (1983). 78 L.Ed.2d 17 104 S.Ct. 1). (Application provi- Note Each of the 3C1.1, very appears which on the Section guideline”; sions mentioned is an “offense Manual, pro- page next of the Guidelines apparently thought the drafters it unneces- vides for a two-level sentence enhancement sary “adjustment guide- even to discuss willfully impeded or ob- “[i]f attempts perfectly lines” on it is because attempted impede ob- structed, or or apparent 2X1.1 face of section justice during struct the administration of poli- that this so-called “overall Guidelines investigation prosecution of in- or cy” application has no to ad- whatsoever Manual, stant offense.” justments.5 added). (emphasis Even if the lan- 3C1.1 guage summary, guideline applies only of section 3B1.3 not as clear as In is, facili- Russello’s rule of construction would an abuse of of a crime. No one oblige presume Congress us to and the tated the concealment any Sentencing fully suggest could such event occurred Commission intended happened here.6 All that is that Foreman omission from section 3B1.3 of refer- nizer, leader, manager, supervisor. Chapter or Would 4. The base offense levels in Two are majority question, enhance the sentence of someone answers to the "What sort of crime did lead, organize, manage, purpose, attempted defendant there who commit?" For roundly rejected culpability supervise, as an be- but who was is little difference in criminal etc., leader, organizer, by partici- all of the other tween one who commits crime A and one who pants? person necessary his sentenced commits all the acts to the commis- Could such have ground simultaneously unexpectedly Three, a crime A but enhanced on this sion of foiled. 1.2(a) ground Chapter reduced under 3B on the that he contrast stands which deals with actually partici- (usually out to be a “minimal the harms caused the means turned themselves) pant" in the crime? criminal which the crimes actually committed. Enhancement is not questions by evades these de- generally specified attempting for to use means clining to decide "whether the Commission’s specified Chapter criminally Three because policy attempts applies adjust- on other beyond culpable intent that of the base offense Ante, majority’s ment.” at But after 1339. (if ever) rarely solely can be inferred from case, misapplication of section 2X1.1 in this means; choice of defendant’s harm rather than why apply should it not to others as well? What key Chapter intent is the in Three. stop My only regard hope will is that it? in this majority future has sus- courts will see that the properly I also that even if we could 5. note pended ordinary statutory construc- rules of policy apply "overall Guidelines on at- accordingly. approach tion and will limit its tempts” adjustments, the results would instance, Consider, creating, deleting, upon majority, and re- absurd. the effect 6.The after Role”), guideline, ("Aggravating provides arranging which various elements of findings orga- quotes and district court's for enhancement if was an from the request to a response showed America, law local and STATES from federal UNITED for identification suspicion she Petitioner/Appellee/Cross-Appellant, whose agents enforcement absolutely doing so had Her had aroused. The occurrences. subsequent no effect ZOLIN, Respondent/Appellee, S. completely Frank were investigating authorities question proceeded unimpressed and and bulge unusual regarding the Foreman officers incredulous waist. around her Scientology of California Church to feel asked and answer ignored her Hubbard, Mary and Sue to this consented bulge; when Intervenors/Appellants/Cross-Appellees. discovered search, narcotics 85-6065, 85-6105. Nos. arrested. she was clearly did conduct Foreman’s Although Appeals, Court majority refus- anything, not facilitate Circuit. Ninth statute meaning of the plain apply toes 20, 1990. June expan- more new and creates a and instead from borrowing elements guideline, sive ma- that the guidelines

other, inapplicable have been should feels jority apparently ais The result here. included con- “attempted something called covering before, covered cealment,” was which apparently believes which stat- clearly expressed subject to judge sentencing that the utory command ques- conduct efficacy assess significant- it determining whether tion Honesty, the concealment. ly facilitated justifi- uniformity, proportionality —the Sentencing Commission cations which Guidelines, Guidelines advances (“Introduction”), n. Manual, Pt. A Ch. not fostered (“The Approach”) Basic —are the Commission’s approach to by such an I dissent. Accordingly, language. factual majority apparently thinks finding pertinent "as interprets the acknowledging that while can be settled issue significantly facilitated conduct that Foreman's these might from Ante, be drawn inferences at "other attempt conceal her offense.” facts, findings district way inter- same an odd strikes me as This 1340. Ante, My at 1340. erroneous.” majority quotes. were not All language the pret the however, contention, the district is not “at- that Foreman said was district court significant finding facilitation investigating officers court's clearly tempt[ed] to dissuade the erroneous; the district is rather that investiga- with their proceeding further judge finding. The no district made such Where court plainly successful.” was not tion. This ask, thought to find statement, it was sufficient might could one in that to facilitate the intended anything support the majority possibly find crime; efficacy of address any sig- he did had conduct that Foreman’s assertion at all. conduct Foreman's effect of kind? nificant Notes po use Foreman’s whatsoever us tell Commentary should official —which “significantly” altered, alone let lice re- importance of this something about way, plain altered, her situation Commentary, According to the quirement. foreclose should section 3B1.3 meaning of contrib- have must of trust “[t]he any en preclude inquiry and any further way to facilitat- substantial uted in some Only section. upon this based hancement provided merely have and not crime ing principle the venerable honor can we thus easily have that could as opportunity an clear, a statute language of if the This ad- persons. to other afforded been its ordinarily given must apply to example, would justment, for and Natu Immigration meaning. plain tell- ordinary bank by an embezzlement an Cardoza-Fonseca, v. Service ralization 3B1.3, Com- Manual er.” 1207, 1213 12, 421, n. 107 S.Ct. 432 480 U.S. 1) (emphasis Note (Application mentary id. (1987); at n. 94 L.Ed.2d guide- Commentary, added). like This J., concurring in the (Scalia, at 1223 S.Ct. inquiry calls amplifies, line v. States Wiltber (citing United judgment) the extent to which abuse into 95-96, Wheat.) 76, (5 L.Ed. ger, 18 U.S. actually contributed —to contributed — C.J.); (1820) (Marshall, of the offense. Wall.) 18 L.Ed. Hartwell, 73 U.S. (6 upon based for enhancement instead settles v. Sul Co. Refrigerating Bate (1868);

Case Details

Case Name: United States v. Patricia Foreman

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Jun 19, 1990

Citation: 905 F.2d 1335

Docket Number: 89-50038

Court Abbreviation: 9th Cir.